Griffey v. Kennard

• Decision Date: 03 July 1888
• Citation: 38 N.W. 791,24 Neb. 174
• Parties: GRIFFEY v. KENNARD.
• Court: Nebraska Supreme Court

24 Neb. 174

38 N.W. 791

GRIFFEY

v.KENNARD.

Supreme Court of Nebraska.

July 3, 1888.

Syllabus by the Court.

In an action in ejectment, where the evidence shows that the defendant was not in the actual possession of the real estate in dispute, receiving no profits therefrom, and that it was uninclosed and unimproved prairie land, no damages can be awarded for use and occupation.

Error to district court, Dakota county; CRAWFORD, Judge.Joy, Wright & Hudson, for plaintiff in error.

L. W. Osborn and John T. Spencer, for defendant in error.

REESE, C. J.

This was an action in ejectment, instituted in the district court of Dakota county by defendant in error for the possession of the S. W. 1/4 of section 4, in township No. 27 N., of range No. 8 E., and the N. W. 1/4 of the S. W. 1/4 of section 27, in township No. 28 N., of range No. 7 E., together with damages for withholding the same, to the amount of $900. The petition was in the usual form. Plaintiff in error filed his answer, which consisted of a specific denial of defendant's ownership of the land in section 4, and of his right to the possession thereof, together with a denial of its unlawful detention. The defendant's ownership of the land in section 27 is neither admitted nor denied, for want of sufficient knowledge of the facts alleged in the petition; but the unlawful detention thereof is denied, as well as all the allegations of damages. It is alleged, affirmatively, that plaintiff in error is the owner of the real estate in question, and that his possession is rightful. The statute of limitations is pleaded as a bar to defendant's recovery of the land in section 4, by which it is alleged that plaintiff in error has been in the actual possession of the property since the 7th day of September, 1871, under a tax deed of that date, and that such possession has continued uninterruptedly up to the commencement of the action. The reply of defendant in error consists of a denial of the allegations of the answer, and the affirmative averments that, in the year 1870, defendants in error obtained a judgment in the district court of Dakota county for the sum of $1,500 against one Alexander MacReady, and that soon thereafter D. S. Parmelee obtained a judgment against the same defendant for the sum of $1,550. That, prior thereto, MacReady, being the owner thereof, had fraudulently conveyed the real estate in question (with other lands) to the members of his family, whereupon a proceeding in equity was instituted by said Parmelee, in connection with defendant in error, for the purpose of subjecting said land to the payment of said judgments, and that, upon a final hearing of said cause, it was decreed that the title of the defendants in said action was fraudulent, and the land made subject to execution process. That, by an agreement between defendants in error and Parmelee, the proceedings in equity were conducted for their joint benefit, and at their joint expense, each to share in the proceeds of the sale of said lands. That, in pursuance of said agreement, all the lands described in the petition, with others, were purchased by Parmelee at sheriff's sale for himself and defendants in error, and after the confirmation of the sheriff's sale, and the conveyance to Parmelee, he, Parmelee, conveyed the lands in dispute, with others, to defendant in error. That during all of said proceedings plaintiff in error was the paid attorney of record for defendant in error and Parmelee, acting for them with full knowledge of the agreement and of the conveyance from Parmelee to defendant in error, and of defendant's ownership of the property; and that any title obtained from the...